PARIHAR, J. - (1.) A first information report came to be lodged at Police Station-Kishangarhbas, District-Alwar on 4. 6. 2000 at 10. 05 A. M. by one Hulla for an incident alleged to have taken place on the same date at 6. 00 A. M. It was alleged in the report that Deena, elder brother of the complainant, was assaulted by the persons named in the FIR resulting in death of the injured Deena on way to the hospital.
(2.) THOUGH, number of persons were named in the FIR, however, the investigating agency, after investigation, submitted charge- sheet against only two persons namely; Juber Khan and Fajju and negative report was filed in respect of other persons named in the FIR. After the case been committed to the Court of Additional Sessions Judge No. 1, Kishangarhbas, charges were framed against the two persons namely; Juber Khan and Fajju. After commencement of the trial, two eye witnesses were examined namely; PW-1 Hulla and PW-2 Sabuddin, After recording the evidence of above two witnesses, an application under Section 319 Cr. P. C. came to be filled by the complainant before the trial court. The trial court, after considering the entire material on record and hearing both the sides, came to the conclusion that, prima facie, a case under Sections 302, 324 and 323/34 IPC is made out against the accused petitioners also. Thus, vide order dated 29. 3. 2001, the trial court issued process against the accused petitioners and ordered for arrest of the accused petitioners. The order dated 29. 3. 2001 is under challenge in the present petition under Section 482 Cr. P. C. This court, after hearing learned counsel for the accused- petitioners, called for the record of the case from the trial court vide order dated 18. 5. 2001 and also stayed operation of the impugned order dated 29. 3. 2001 passed by the trial court. Mr. Bajwa, learned Senior Advocate appearing on behalf of the accused-petitioners, has submitted that after thorough investigation, the investigating agency has chosen to file challan against only two persons namely; Juber Khan and Fajju and a negative report in respect of accused petitioners. The complainant never submitted any protest petition against the negative report submitted against the accused petitioners before a competent court. It was only during the trial that an application under Section 319 Cr. P. C. was filed by the complainant. While assailing the impugned order passed by the trial court, Mr. Bajwa very vehemently submitted that in such matters process should not have been issued by the trial court in a casual manner, when there was nothing on record to show the involvement of the accused-petitioners, moreso, when neither any protest petition was filed by the complainant against the negative report submitted by the investigating agency nor even remedy of filing criminal complaint was availed of by the complainant.
(3.) MR. Bajwa relied on the judgments of the Supreme Court in the case of "municipal Corporation of Delhi vs. Ram Kishan Rohtagi & Ors. " (1), "m/s Pepsi Foods Ltd and another vs. Special Judicial Magistrate and Ors. " (2), and "michael Micado vs. CBI" MR. Bajwa has also submitted that in case this court maintains the impugned order passed by the trial court, then the non-bailable warrants issued against the accused petitioners may be converted into bailable warrants. Mr. Jagdeep Dhankar, learned Sr. Advocate appearing on behalf of the complainant, on the other hand, has submitted that under Section 319 Cr. P. C. , the court has enough powers to issue process even during the course of the trial. He has further submitted that it was only after considering the first information report, the statements recorded under Section 161 Cr. P. C. and further statements recorded by the trial court, that the impugned order has been passed by the trial court. Mr. Dhankar has relied upon the judgments of the Supreme Court in the case of "rakesh and another vs. State of Haryana" (4), and "salauddin Abdulsamad Shaikh vs. State of Maharashtra" After having considered the submissions made by learned counsel for the parties, I have carefully gone through the material on record as also the judgments cited at the Bar. ;